Exercise of discretion - must have an open mind

 

Mr Mustard has long thought that enforcement authorities pay lip service to the question of exercising their discretion in favour of the motorist and have used false logic to justify their refusal i.e. that the contravention occurred and therefore they cannot cancel. This is because he has written to councils about circumstances which would make your heart break and yet a faceless employee or contractor rejects such a challenge. Mr Mustard has had some success with this approach but he only uses it when he can't beat the PCN on technical grounds. An adjudicator can't cancel using their own discretion but can consider if an enforcement authority properly exercised their discretion and the following case seems to Mr Mustard to be a fine example of that:

 

 

If you decide to ask a council to use their discretion to cancel, do not mention the alleged contravention at all.

The end. 

Taking Camden to Town

 

Mrs D parked as above. Although previously helped by Mr Mustard, Mrs D thought she could deal with this herself. What she wrote on 3 November was clear and detailed, as follows:

 

That was a very well written, polite and calm request for discretion written by a person who perhaps doesn't know that no loading is generally held to also mean no blue badges but councils can opt to allow it, the signs don't tell you the answer. In Barnet, where Mrs D lives, the council have messed up the rules for this and a blue badge holder can defeat a PCN. Camden probably have it correctly defined in their traffic orders. That part of Camden which is south of Euston Rd is outside the scope of the blue badge scheme but this location is within the rules for blue badge use.

You have probably already guessed that Camden Council rejected the challenge.

The council blame the driver for not planning ahead when it is clear from the challenge that the situation was different on 3 November.

The information given to blue badge holders is not quite as clearcut as the council claim.

Barnet allow free parking in residents bays but the signs don't tell you that.

It would have been helpful if Camden Council had explained what and where the green badge zone is.

It doesn't matter whether Camden Council are satisfied a contravention occurred, or not. What they were asked to do was to exercise their discretion and they showed no sign of having done so with an open mind.

Note the nudge about future discount, a dire warning that it will cost you if you fight on. Mrs D agreed to make a donation to the North London Hospice and sent the Notice to Owner dated 6 January 2026 to Mr Mustard. He made the formal representations on 9 January.

Mr Mustard had Camden Council cornered and he also had a cheeky impossible question for them about reserving space on the public highway, hopefully they won't write such unhelpful guff in their future rejections.

Camden Council get 56 days by law in which to reject the formal representations and if they do not serve their response in time they are deemed to have accepted the representations and must cancel the PCN. Mr Mustard keeps an eye on the online balance. The 10th time he checked was 6 March by which time Mrs D had not received a Notice of Rejection but the balance was unchanged at £160. Mr Mustard went online on 6 March and sent Camden Council a message that pointed out the law and told them the PCN must be set to £0.00

On 12 March when he checked the balance duly was £0.00, Mrs D hadn't heard from the council by then nor had Mr Mustard. Not at all polite which is sadly a quality that often goes missing in council parking departments.

If you are a blue badge holder and was given a PCN for being on double yellows with a loading ban, it is time to ask for a refund if it was given out in Granary Street.

You are probably wondering why the informal challenge didn't pick up the council traffic order failure. It is because the assumption is that all signs which have been erected will have an underlying traffic order and 99.9% of the time that is the case so a rejection letter can reasonably be based on signage but 0.1% of the time Mr Mustard is there to spot the error. Mr Mustard expects that Camden Council will have corrected the traffic order map now.

Mrs D generously gave £80 to the North London Hospice. 

The end. 

 

 

 

Havering - a mitigation free zone

 

Blue signs mean 'only' so in this case only buses and cycles may pass the sign. The words 'bus gate' on the road should help motorists to turn around and find another way to the hospital which you can see in the background.

Mr Mustard fell over the tribunal decision at random as he idles through the tribunal decisions most days.

 

Mr Mustard often struggles to convince the public that a council will, when faced with an obviously meritorious claim for kindness (use of discretion) reject it because the overwhelming need is to raise revenue. This is illegal but hard to prove.

Let us look at the decision above.

Firstly note the correct statement that if you fight a moving traffic PCN the discount does not have to be offered again if your challenge is rejected. The discount legally terminates at the end of day 14. There is a trend to not offer it again which is the opposite of what it has been for years. If you are in that situation the tribunal is a free throw of the dice.

Then note that contrary to what the PCN states there are no mitigating circumstances which Havering Council will cancel for. Thus, although you don't know it, every challenge is futile.

Ironically the only grounds they will accept were ones which only came out during the hearing, the driver was following an ambulance, one which contained her father in an emergency situation. If he ambulance driver tells you to follow them you don't choose the route the ambulance will take.

Adjudicators are human beings, unlike the heartless automatons who reject PCN challenges (not all of them but there are plenty as they aren't held to account) and find a way for justice to be dispensed. No need to bend the law to fit in this case Lord Bridge of Harwich had set the scene in the House of Lords decision quoted.

Councils are obliged to have 'due regard' to the Statutory Guidance of the Secretary of State, the relevant part of which follows:

That was another basis on which the Appeal could have been allowed albeit less authoritatively.

In summary, Havering Council are not acting fairly, not proportionate, not sensible nor reasonable and only become so once put on the spot which is at most 1% of the time for challenged PCNs = hardly ever.

Havering Council probably aren't the biggest fans of Mr Mustard given his record against them at the tribunal.

The score is 17-0 to Mr Mustard! (+ 5 other cases where they threw in the towel). Why don't you take your PCN fight to the tribunal against this Council?

The end.

No Humanity in Hounslow

Councils have become overly reliant on PCN income and all humanity has been lost in the search for revenue.

Mr Mustard made the following formal representation which was basically a cry for help:

 

One would think that any person with a heart would let the one PCN go by the wayside given the fact that I am telling them that the motorist is seriously ill. No, all that matters is that you should give Hounslow Council £160, they not even offering the 50% discount again (it is optional at this stage but would have shown some empathy, fake though it would have been).

Here is what was written:

It seems that Hounslow Council don't understand that they have been asked to exercise their discretion as a goodwill gesture.

Looking at the elements of the response, we know why the PCN was issued, the details are on the Notice to Owner which prompted the representation.

The line which starts 'I have noted...' is otiose.

'Stressful' - that is something of an under-statement.

It is true that serious cancer 'has no bearing on the validity of the PCN...' but that is not what the request was for, it was for the exercise of discretion, the response lays a false trail, it is an exercise in sophistry. 

This is what the Secretary of State has to say in his Statutory Guidance to which a council must have due regard:

The guidance is clear. Hounslow Council can cancel any PCN, no matter how correct, if they want to. 

Mr Mustard thinks that being told you should think about whether to drive or not due to your serious health condition is advice that the motorist doesn't need to hear from a council whose business it isn't (it is the DVLA's role) so butt out Hounslow.

Although the rejection letter says they have 'carefully considered the representations, and any mitigating circumstances' that is clearly a standard response because it should refer to 'the mitigating circumstances' not 'any' that might have been advanced. The response is a lazy one, the motorist deserves a proper response.

The worst part of this letter, in Mr Mustard's opinion are the words:

'there is no reason for it to be cancelled'.

Just let that sink in. An extremely serious cancer isn't a good enough reason for a PCN for a minor parking contravention to be cancelled. 

The world has been turned upside down. Councils have been given too much power and they are abusing it very badly.

Hounslow Council should hang its head in shame, give itself a good talking to, revisit its policies and start behaving with some common decency.

What of course the letter should have explained is why discretion would not be exercised. That consideration starts from an assumption that the PCN is valid and so the response should explain why discretion is not being exercised. What does it take before discretion is exercised?

If the write of the letter (nameless of course) had to sit across a desk from the motorist and tell them no to their face, they wouldn't be able to do it. That is how the question of discretion should be considered.

 

No mercy given by Barnet Council

Barnet Council aren't ususual in being beastly to the public but the below decision is a useful illustration, in Mr Musatrd's opinion, of how councils refuse to cancel because they want the money. What other explanation can there be for refusing to cancel?

 

If you know Mr Amir Khan please say 'blue badge' to him in case his child qualifies.

The legislation which enabled councils to issue PCNs was written on the basis that councils would fairly exercise discretion. Thanks, in part to the increased use of outside contractors and the pressures on council budgets (no matter how much they deny that imperative) that is seen to happen less often. 

One quick and simple solution might be to allow adjudicators to exercise discretion themselves rather than have them ask the council in question to be kind and for which there is no comeback if the council say no.

The end.

 

Don't do it again: park legally that is!

Typical double yellow lines

 

Parking on double yellow (or single yellow) is an exemption if you are engaged in boarding or alighting of a passenger. Normally 2 minutes will be allowed but longer if the person is too young to walk unaccompanied or elderly, or disabled or in this case has just come out after two weeks in hospital following major surgery for a perforated bowel. This is known in parking circles as assisted boarding / alighting.

Mr Mustard made the challenge to the PCN a week after it had been placed upon the car.

The observation period which the 'traffic warden' had made was zero minutes so  he/she was unlikely to see any boarding taking place. Thus when the council rely on the traffic warden not having witnessed any you calmly point out how unlikely they were to see anything much.

Mr Mustard's challenge was this:

The response also only took a week. The PCN was cancelled but Mr Mustard takes exception to the churlish way in which it was done.

The stated reason for cancelling, of 'goodwill', is no such thing. It was because of the overwhelming medical evidence which was the discharge note showing the length of hospital stay, the reason for admission and 6 active problems including heart failure and a malignant tumour. A council, yes Barnet, aren't doing you a favour when they cancel a PCN in a situation in which stopping is not only allowed but it is really a duty to assist your parent who has been battered by health problems. You don't say, 'sorry mum, there are double yellows outside, I had to park 300m away'.

There is no 'enforcement' for this PCN. It was only at the first stage. Mr Mustard would have gone on to make formal representations and if those had also been refused he would have gone to the independent tribunal where he rather expected to win. Only after that if the adjudicator had decided against you and then 28 days had passed and you hadn't paid could any enforcement commence.

The final sentence is more rot. If the same situation arises, of assisted boarding of a sick person, then the same outcome should prevail. 

Why do councils feel the need to poke a person in the eye who has done nothing wrong? A PCN is notification of an alleged contravention. Councils treat a PCN as a cast iron contravention. They need their thinking changed. Mr Mustard is doing his best to make councils think again but it is an uphill struggle.

Don't be a soft touch. If you have a good argument, fight the council and then take them to the tribunal where you get an independent hearing.

The end.

 

Persistence pays - all councils, not just Haringey

Mr Mustard was contacted by a motorist who put the health and safety of his father before petty parking considerations. The bay was a pure Event Day one. If the motorist has described the facts in a good manner there is no need for Mr Mustard to rewrite them. On 1 June he made the informal challenge (the one in response to a PCN placed on your car or put in your hand):

 It was 5 July before the challenge was rejected. Here it is:

Mr Mustard expects that you find it hard to believe that there is any real sympathy otherwise the PCN would have been cancelled. The (un)Fitness for Work note confirmed that the patient was not fit for work, suffered seizures and had been referred to hospital for tests. How much more sick do you have to be to get Haringey to exercise their discretion?

Mr Mustard advised the motorist not to pay at the 'bribe' rate of 50% as he was fairly confident that he could beat the PCN on the basis of inadequate signage. Councils offer this discount even when they don't have to (it was required in this case as the challenge was within 14 days of the PCN) as they know that motorists worry about it and that the vast majority of motorists do not have sufficient determination to see things through and may mistakenly think they cannot re-use a challenge which has been rejected. They can and they should for consistency.

On 24 July the Notice to Owner arrived.

Mr Mustard made representations against it, known as formal representations as they are the ones described in statute, and the heading apart, they repeated the earlier challenge and were made on 26 July:

 This time, the same challenge met the opposite outcome, acceptance.

This was done by a different council staff member.

Mr Mustard finds Haringey Council now accept most of his challenges either because there has been a change of management or someone has analysed all of Mr Mustard's cases and discovered that he almost never loses against them.

What the public should learn from this experience is that if you want to get a PCN cancelled, and you have a half decent argument, is that you have to see the fight through. You might also have to start an Appeal at the independent  Environment and Traffic Adjudicators. Decide at the beginning, pay or fight. If the idea is to fight don't be put off by the first council rejection, it is all about the money.

The end.

Councils can't afford to be kind

When he gets a fresh PCN Mr Mustard often has to warn people that, more likely than not, the council will not look kindly on the reason why they received the PCN. The council want your money, most of the time, and whilst they have a wide discretion, councils can cancel any PCN for any reason, the adjudicator cannot & must strictly apply the law. Adjudicators can only recommend that a council think again although Mr Mustard has seen them bend the law in order to excuse an error.

Here is a classic example of a situation in which Mr Mustard thinks the public would expect leniency to come into play but he wasn't at all surprised when it didn't. This is a situation which, other things being equal, will only happen the once.

The informal challenge submitted to Lewisham Council:

and the relevant part of their response:

This is a Catch 22 response. There is no evidence that the writer thought about exercising their discretion. Their explanation is that because the contravention happened, which was already conceded by the motorist, the council won't cancel because the contravention happened.

What should happen is that Lewisham Council should consider the mitigation put forward, decide if it has the ring of truth (why would you stay in a hotel in SE13 when you live in SE6?) which it does and then consider whether or not to cancel the PCN. There is no revenue loss to the council which didn't instigate an automatic refund of a payment for which no value was given (once you have a PCN you cannot get another the same day, unless the rules of the bay change, if you don't move).

The rejection letter should explain why discretion is not being exercised, like one of these responses:

a    your proof is not credible

b    we don't think the mitigation is sufficient as you could have paid the night before (if you can, although the driver might have been intending to get up early, buy flowers and attempt a reconciliation)

c    we want your money so won't cancel

d    we are venal and rapacious. (* copyright another PCN expert, Incandescent).

The law assumes that a public body endowed with absolute power will exercise that power in a manner which is fair in all the circumstances. Although this appeal for clemency can be argued both for and against what is apparent from hundreds of PCNs that Mr Mustard has seen is that in many councils heartlessness and ruthlessness are the order of the day (He does have good experiences, he recounted one with Islington Council on twitter last week but he sees far more bad than good).

The problem is that councils are not routinely monitored or inspected for the way they go about the issue and enforcement of PCNs. We need an outside body which referees the whole system and can visit councils and encourage best practice and fairness. There are 7 million PCNs issued in London every year. Councils are out of control in their quest for revenue.

Time to create OffPen.

The end.

PCNs - exercise of discretion - #30 Tower Hamlets

 

Tower Hamlets Council - Policy - Cancellation of PCNs by MisterMustard on Scribd

Mr Mustard forgot to mention Tower Hamlets when he wrote this series of blogs, he was waiting for their new policy to be produced and provided. In the meantime here is the existing policy which the council produced as soon as it was requested.

Discretion doesn't appear until page 5 but at least there is some and they are the reasons that you hear the most.

Mr Mustard doesn't agree with no. 5, that isn't mitigation. If there are no lines when you park and double yellow lines appear under your car whilst you are parked you have not committed a contravention. The council should know what lines they have painted when. Furthermore the daily traffic warden briefing should tell wardens of where lines are being painted that day so they can tread lightly in that area.

Policy no. 6 appears to be less generous to blue badge holders than to other permit holders which may be a breach of the Equality Act.

Policy no. 10 for multiple moving traffic contraventions is a reasonable approach.

The end (for now).

PCNs - exercise of discretion - #33 Westminster

No policy here either. Kerbside management policies are before the event, not after and not what was requested.

The online link was updated after Mr Mustard's request, no attempt has been made to see what was changed, as current discretion cancellation policy is the main interest.

Oddly, there is a reference to City Council policy but the FOI request for policies drew a blank. Very odd or else it simply illustrates that websites are a collection of fancy words not backed up in reality.

The end

Mr Mustard would provide TfL's policies but he forgot to ask for them at the same time and so will provide those in the new year.

PCNs - exercise of discretion - #32 Wandsworth

Usual question, no real answer.

The end.

PCNs - exercise of discretion - #31 Waltham Forest

 

London Borough of Waltham Forest PCN Cancellation Procedure by MisterMustard on Scribd

Whilst there are 56 pages of blurb the vast majority are stating when there wasn't a contravention. There are some nuggets though.

Page 8 sets out some common sense consideration which should be applied. Grace periods are quoted but Mr Mustard doesn't know if they are adhered to or not.

The mitigation policy is mostly set out on page 11.

Page 12 tells us that you can load or unload from the pavement. Mr Mustard doesn't recommend that except when there is absolutely no alternative. Someone must stay with the vehicle to explain about loading to any passing traffic warden.

Page 19 tells us that you can park for free for 15 minutes in pay bays all over the borough. He checked a sample location and yes, the sign does tell you this.

This lets you drop off your dry cleaning or pick up a parcel etc. Very decent of the council. Still better for you to walk though if you live within a mile of your local shops.

Interestingly, Waltham Forest don't enforce parking across private driveways, see page 26.

The notes about multiple PCNs on page 35 have forgotten to say that if a restriction is in force 24 hours a day that there is only one continuous contravention and so only one PCN is legally valid.

If you contact the council when you are at the charge certificate stage (page 41) when 150% of PCN value is payable, they will accept 50% if you ask. Who said it isn't all about the money? Will they also consider out of time representations?

On the same page it is pleasing to see the council is open to complaints about process, other councils try to deny that this should be allowed, when of course it should as the role of the tribunal is limited by legislation and does not include complaints.

On the next page the paragraph about addresses looks wrong. You can ask the council to write to you at any other address for your convenience.

The note at 15 on page 42 tells us that the council themselves did not write this policy, which leads to the assumption that NSL wrote it. It also makes Mr Mustard wonder what else NSL do that the council really should do, such as the consideration of formal representations.

The end.

PCNs - exercise of discretion - #29 Sutton

Sutton's document about the exercise of discretion is mostly about circumstances when there isn't a contravention which doesn't need a policy other than that the PCN should therefore be cancelled.

There is an odd reference to the Traffic Penalty Tribunal which adjudicates on PCNs issued outside of London, not within, so not within the boundaries of the London Borough of Sutton.

Discretion Guidance Sutton Council by MisterMustard on Scribd

End

PCNs - exercise of discretion - #28 Southwark

Coming soon - Mr Mustard's request may have prompted or speeded up this policy.

End.

PCNs - exercise of discretion - #26 Redbridge

The FOI response started well

but fell off a cliff as soon as Mr Mustard started to read a list of reasons why discretion would not be applied, completely against the spirit of the Statutory Guidance, guidance to which Redbridge must have due regard.

Mr Mustard doesn't know how a traffic warden (Civil Enforcement Officer) can tell by looking the reason why a car has stopped to see if it a permitted reason or not? (Answer, they can't).

Being a few minutes late back after paid for, or free parking, isn't a contravention until you are more than 10 minutes late. The law says a PCN may not be issued in that 10 minute period (don't take this as meaning you can be 10 minutes late anywhere that you park).

No person can ensure their vehicle does not break down.

We don't have flat 'tires' in the UK, we may suffer a flat tyre.

It is a rare event that an engine falls out of the bottom of a car and hits the road.

The remark about naming the driver when you get a Notice to Owner is bunkum. If the vehicle is short term hired or on long term lease the effective keeper may be another person but if your son or daughter was driving on a casual basis the legal responsibility to deal with the Notice to Owner remains with the owner (the clue is in the name) although arrangements can be made for the driver to repay the keeper/owner for any PCN which has to be paid, outside of the PCN process.

Setting the clock doesn't tell a traffic warden when you will return, only the latest time by which you should, by adding 3 hours to the recorded time. They mustn't assume anything, CEOs!

I would doubt that the police in Redbridge have so little crime to deal with that they spend loads of time on the phone to the council. The police do not deal with parking on school keep clear markings, it is part of the decriminalised civil enforcement system. 

You can wait on single or double yellows whilst children board or alight and if they are young you can accompany them for safety purposes.

Redbridge are rubbish.

The end.